Businesses Are Fighting Back Against USCIS’ Restrictive View of H-1B ‘Specialty Occupation’

U.S. Citizenship and Immigration Services (USCIS) is making it more difficult to hire temporary foreign workers in a “specialty occupation.” American businesses are fighting back in order to keep their talent in increasingly competitive tech and science fields.

Since June 2017, at least 14 lawsuits have been filed in federal courts across the country, challenging USCIS’ denial of petitions to hire foreign workers for temporary positions in the H-1B nonimmigrant visa classification. All the lawsuits contend that these denials are arbitrary, capricious, and contrary to law.

In one of these lawsuits, USCIS denied an H-1B petition for a Computer Systems Analyst. The American company that submitted the petition had come to rely upon the foreign worker as a senior-level employee. USCIS denied the petition—despite that the agency had previously approved four petitions filed on behalf of the same worker for the same position in the same company. The denial left the American business without a trusted, senior employee and the employee without legal immigration status, despite years of commitment to the company.

USCIS’ negative determinations result from a slew of policies announced by the Trump administration that enable USCIS to narrowly interpret the law and regulations when adjudicating petitions. For example, these policies have allowed USCIS to:

Disregard prior approvals grants of H-1B status when an employer petitions to continue the worker’s employment in H-1B status.

Require additional documentation from H-1B petitioners if an H-1B worker would be placed at the worksite of another business.

Disregard the employer’s educational requirements for the job.

Coinciding with these policies, USCIS is denying a substantial number of H-1B petitions on the grounds that the job is not actually in a “specialty occupation.” This includes jobs that the agency previously approved as being in a “specialty occupation.”

To qualify as a “specialty occupation,” a job must satisfy any one of four regulatory criteria. USCIS’ uptick in recent denials comes from a limited interpretation of the Department of Labor’s Occupational Outlook Handbook, a reference manual that describes the typical education and training needed to enter a given occupation.

The handbook is used to analyze the first regulatory criteria, whether a bachelor’s degree in a “specialty occupation” is required for the job. USCIS has recently been rejecting the H-1B petitions based on its interpretation of the manual, without meaningfully considering other evidence provided by the H-1B petitioners for purposes of meeting the first—or the other three—regulatory criteria.

Businesses have had enough and are filing lawsuits that ask the federal courts to declare that USCIS’ restrictive interpretations are unlawful and to reverse denials of specific H-1B petitions. The American Immigration Council is co-counsel in two of these lawsuits, challenging the denial of an H-1B petition for a Construction Manager and a BI (Business Intelligence) Business Analyst.

In his inaugural address, President Trump stressed that his administration would put “America first.” But the Trump administration’s position on adjudicating H-1B petitions is wreaking havoc on the H-1B process for many American businesses. The increase in lawsuits shows that businesses are prepared to fight to defend their selection of workers needed that the administration’s attempt to limit that autonomy hurts American businesses.

About The Author

Karolina (Caroline) Walters is a Staff Attorney at the American Immigration Council where she works to defend the rights of noncitizens through impact litigation, advocacy, and education. Before joining the Council, Caroline was the Associate Director of the American Bar Association’s Section of Civil Rights and Social Justice. Previously, Caroline worked as a Staff Attorney for the Mexican American Legal Defense and Education Fund (MALDEF) in San Antonio, Texas, where she focused on civil rights impact litigation in the areas of voting rights, immigrants’ rights, education, and employment. Prior to her time at MALDEF, Caroline was a Litigation Associate at Fried, Frank, Harris, Shriver & Jacobson LLP in New York City. Caroline holds a J.D. from American University’s Washington College of Law and a Master of International Development from the Graduate School of Public and International Affairs at the University of Pittsburgh.